Monday, August 06, 2007

US v. Valenzuela, No. 06-30398 (8-3-07). The 9th adopts the Blockberger test (differing elements) to determine whether an enhancement is proper in a felon-in-possession offense for committing the offense during another felony. Here, the defendant stole some guns and then tried to sell them. The district court gave an enhancement, which the 9th affirmed (Gould joined by Paez and Rawlison). The 9th fashioned the test so that a district court analyzes the two offenses under a differing elements test (did one offense contain a firearm element that the other did not), and then the court determines whether the defendant used the weapon or whether it emboldened the defendant.

US v. Moses, No. 06-30379 (8-3-07). The 9th (Fernandez, Wardlaw and Pollak) held that defendant's attempt to split the waters in a seasonal riverbed violated the Clean Waters Act, and there was sufficient evidence so that the court did not "let my people go." Defendant owned a development that had a seasonal riverbed and he tried over the years to reshape the bed. He was warned to desist, but did not, and he was prosecuted for discharging pollutants into a stream. The 9th held that dredging tons of dirt could be a pollutant (sounds like one of the plagues), that a seasonal riverbed fell under the Act, and that the evidence was sufficient.

Hoyle v. Ada County, No. 06-35509 (8-2-07). The 9th affirmed a denial of a double jeopardy claim. The jury in a state trial acquitted on a number of racketeering charges, but could reach no verdict on seven predicate acts, and so indicated on the verdict form. The 9th agreed with the lower courts that this resulted in a mistrial, and he could be tried again.


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